States Advance New ‘Captive Audience’ Bans Amid Court Challenges

Washington and a half dozen other blue states this year are considering banning mandatory meetings to talk workers out of unionizing, building on momentum from Minnesota and New York, which enacted such laws last year.

Washington lawmakers passed a bill (SB 5778) to ban captive audience meetings Feb. 29, teeing it up for Gov. Jay Inslee (D). The governor’s office said he usually doesn’t comment on bills until he’s reviewed the final text, but the Washington State Labor Council said Inslee voiced support for the bill at a Feb. 1 meeting of labor leaders.

Unions and worker advocates say the state legislation would prevent employers from using this type of mandatory meeting as part of union-busting efforts to scare workers away from labor organizing.

But business groups, which have sued over measures enacted in Connecticut and Minnesota, argue the bans violate employers’ freedom of speech and are preempted by federal labor law.

The surge of state captive audience proposals coincides with a similar effort at the federal level.

National Labor Relations Board General Counsel Jennifer Abruzzo has pressed her belief that employers’ use of mandatory meetings to counteract union drives is a violation of worker rights under federal labor law.

Abruzzo’s 2022 memo targeting captive audience meetings “has been empowering to unions to push these measures through” in Democrat-controlled legislatures, said Beth Milito, executive director of the small business legal center at the National Federation of Independent Business.

The board itself hasn’t yet ruled on the issue, yet prominent employers ranging from SpaceX and Trader Joe’s to Amazon.com Inc. and Starbucks Corp. have clapped back against this and other worker-friendly NLRB actions by arguing that the agency’s very existence is unconstitutional.

“It’s especially concerning because both Starbucks and Amazon—those are both Seattle, Washington-based businesses—have joined” those arguments against the NLRB, said Washington state Sen. Karen Keiser (D), lead sponsor of SB 5778. “If the NLRB is restricted, it’s up to the states to take on protections for working people.”

‘Religious or Political Matters’

The Washington measure, like similar legislation in other states, would ban employers from firing or taking other adverse action against employees for refusing to attend meetings where managers discuss the company’s views on “religious or political matters.”

The bills define “political matters” to include the choice of whether to join a union.

Before 2022, only Oregon banned captive audience meetings. Since then, Connecticut, Maine, Minnesota, and New York have enacted similar restrictions.

A captive audience measure is expected to resurface in the California Assembly later this year, after the state Senate passed it in May 2023 but it stalled in an Assembly committee. Similar bills are pending this year in Colorado, Illinois, Maryland, Massachusetts, and Vermont.

Employers and business groups say the measures violate the First Amendment because they allow unions to present their case to workers, but companies aren’t afforded a similar opportunity.

“It’s circumventing federal labor law and decades of precedent that give employers the right to speak to employees about these matters,” the NFIB’s Milito said.

Pending Lawsuits

NFIB, Associated Builders and Contractors, and an electric company brought a lawsuit last month to challenge Minnesota’s 2023 law, which gives workers the right to sue over alleged adverse actions taken for their refusal to attend a meeting where managers discuss religious or political matters, including unionization.

The restrictions are “a form of prohibited viewpoint-based discrimination,” the business groups said in their Feb. 20 complaint. The Minnesota law “singles out employers and prevents them from effectively sharing their opinions on political matters of public concern, including opinions against unionization, and from explaining the effects unionization could have on the employers’ business.”

The groups also argue the state law is preempted by the National Labor Relations Act, which sets the ground rules nationwide for private-sector labor organizing and collective bargaining.

A separate coalition of business groups including the US Chamber of Commerce is challenging Connecticut’s 2022 captive audience law on the same grounds. That case, however, has been tied up for months with disputes over discovery requests by the state officials named as defendants.

But supporters of captive audience meeting bans, like the Teamsters union, say employers aren’t blocked from any speech they wish to make. Instead, they’re simply barred from requiring employees to attend and listen as a condition of their employment.

“These companies spend a ton of money trying to scare workers into not joining a union,” said Matt McQuaid, a spokesman for the Teamsters, which is advocating for captive audience bans.

“When this is passed into law, you’re going to see an even greater explosion in workers standing up for one another and getting their fair share of the pie,” he said.